We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

State AGs Investigate On-Call Scheduling

On-call scheduling remains on the radar of regulators across the country, as demonstrated by New York Attorney General Eric Schneiderman's most recent round of letters to employers questioning the practice. Joined by the District of Columbia Attorney General and seven other state AGs (representing California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, and Rhode Island), the letters request information about on-call scheduling practices and express concern about the negative impact it may have on the lives of workers. Employers were asked to provide information about payroll records, sample schedules, and any analysis or studies the companies may have performed about alternatives to on-call scheduling or the impact of the practice on the well-being and productivity of employees. "On-call shifts are unfair to workers who must keep the day free, arrange for child care, and give up the chance to get another job or attend a class—often all for nothing," AG Schneiderman said in a press release about the letters. "On-call shifts are not a business necessity, as we see from the many retailers that no longer use this unjust method of scheduling work hours." Schneiderman sent similar letters to companies in New York last April while employers in California were hit with lawsuits over the practice in the fall. As the issue moves nationwide, employers making use of on-call scheduling should be prepared for scrutiny, whether from regulators or employees.

Detailed discussion

The practice of on-call scheduling—most commonly found at retailers and restaurants—is facing increasing scrutiny nationwide. Last April, New York Attorney General Eric T. Schneiderman sent letters to eight different companies, expressing concern that the practice, which involves employees calling in to an employer a few hours before a shift to find out if they will be assigned to work that day, has a negative impact on workers. Typically, workers who learn that their services are not required receive no compensation for the day.

After receiving the letters, more than one company halted the practice, agreeing to provide employees with work schedules at least one week prior to the start of the workweek. But the publicity triggered more action, including class actions filed by employees in California.

Now, AG Schneiderman has picked up the cause again, along with attorneys general from the District of Columbia and seven other states: California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, and Rhode Island (although some of the offices only signed letters to companies located within their states). In letters to 15 companies, the regulators expressed their concern about the toll on employees from "unpredictable" work schedules.

"Without the security of a definite work schedule, workers who must be 'on call' have difficulty making reliable childcare and elder-care arrangements, encounter obstacles in pursuing an education, and in general experience higher incidences of adverse health effects, overall stress, and strain on family life than workers who enjoy the stability of knowing their schedules reasonably in advance," according to the letters. " 'On-call shifts' also interfere with workers' ability to obtain supplemental employment to ensure financial security for themselves and their families."

Some states have reporting pay or call-in pay laws, the AGs noted. For example, a New York state regulation provides, "An employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage."

To gather information about the employer's use of on-call scheduling, the letters requested information and documents from each recipient. Questions covered scheduling practices, from whether or not a computerized system is used to the level of autonomy that individual store managers have in the process, to details about the total number of employees, the number of employees subject to on-call shift requirements, and the specific policies workers must follow, along with any penalties to which they might be subject to and numbers of employees who have been disciplined or terminated for failure to follow the policies.

The AGs also asked about whether or not recipients have "studied or analyzed the efficiencies or cost savings believed to be associated with the use of 'on call shifts' or the potential or actual effect of 'on call shifts' on the productivity or well-being of its employees," or whether the employer has considered alternative methods for addressing unscheduled absences or unanticipated shifts in business volume other than on-call scheduling.

Employers were instructed to provide policies, handbooks, documents, or written materials regarding on-call scheduling, three to four samples of schedules including on-call shifts, any computerized reports showing instances of on-call shifts assigned, and time and payroll records showing dates on which an employee was paid for a time period of fewer than the minimum hours required by state law (such as the four-hour minimum in New York).

Related topic hubs

Compare jurisdictions: Pensions & Benefits

"Lexology is a great service, providing easy access to a variety of relevant articles from a number of information providers across different geographical zones -- I just wanted to say thank you to all who are involved in providing this reference!"